Rickaby and Repatriation Commission - [2000] AATA 1045

DECISION AND REASONS FOR DECISION [2000] AATA 1045

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/534

VETERANS' APPEALS DIVISION       )
           Re      BRIAN RICKABY
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr P D Lynch, Member

Date28 November 2000
PlaceSydney

Decision The Tribunal affirms the decision under review.

..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - cervical spondylosis – lumbar spondylosis – intermediate or special rate

Veterans' Entitlements Act 1986 ss 6C, 7(1)(a), 9(1)(e),23, 24, 29, 120, 120(A)

Keeley v Repatriation Commission (2000) 98 FCR 108
Repatriation Commission v Deledio (1998) 27 AAR 144

REASONS FOR DECISION

Mr M J Sassella, Senior Member Dr P D Lynch, Member

On 3 October 1995 Brian Rickaby ("the Applicant") lodged an informal claim (T4) with the Repatriation Commission ("the Respondent") in which he sought a Disability Pension.
On 23 October 1995 the Applicant lodged a formal claim for a Disability Pension (T5). He claimed for conditions of poor eyesight, poor hearing, lower back, irritable bowel syndrome, dermatitis (arms and hands), dizziness, fainting, hypertension, effects of drinking, haemorrhoids, tension headaches, depression/guilt, bladder/liver, post-traumatic stress disorder (PTSD), effects of malaria and effects of smoking.
In a decision dated 2 February 1996 (T12) the Respondent accepted as war-caused the conditions of bilateral sensorineural hearing loss (BSHL), irritable bowel syndrome, PTSD/alcohol abuse with somatic symptoms, malaria, chronic bronchitis, contact dermatitis and hypertension. Rejected were the claims for poor eyesight, back pain and haemorrhoids. A Disability Pension payable at 90 per cent of the general rate was granted with effect from 9 July 1995.
On 13 March 1996 the Applicant lodged with the Veterans' Review Board ("VRB") an application for review (T13) in respect of the three rejected conditions.
On 28 May 1997 the Respondent accepted as war-caused conditions of bilateral tinnitus and gastro-oesophageal reflux and assessed pension at 100 per cent of the general rate with effect from 26 August 1996 (T21).
On 4 June 1997, haemorrhoids and PTSD with alcohol abuse and somatic symptoms were accepted as war-caused with effect from 3 July 1995, correcting the previously incorrect date of effect of 9 July 1995. The rate payable was 100 per cent of the general rate (T21).
On 24 June 1998 the Respondent decided under s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T17) that the correct diagnoses for Mr Rickaby's back pain were intervertebral disc degeneration C5-6 and C6-7, and L3-4 and L4-5 lumbar intervertebral disc lesion. A Dr Sahukar had provided information on Mr Rickaby's behalf yielding this result. The condition was still rejected as war-caused.
On 9 March 1999 the VRB decided to affirm the Respondent's decision concerning Mr Rickaby's back condition (T21). This meant that the Applicant's claim for what had become described as intervertebral disc degeneration C5-6 and C6-7 and lumbar intervertebral disc lesion L3-4 and L4-5 was still rejected. The VRB affirmed the Respondent's decision to assess the rate of pension at 100 per cent of the general rate as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rickaby and Repatriation Commission

Details

AGLC: Rickaby and Repatriation Commission [2000] AATA 1045
Case: [2000] AATA 1045
Decision Date: 28 November 2000

CaseChat Overview and Summary

The case of Rickaby v Repatriation Commission involved the applicant, Mr Rickaby, contesting the decision of the Repatriation Commission to not grant him a disability pension. The applicant argued that his conditions of cervical and lumbar spondylosis were war-caused, warranting the pension. The Federal Court was tasked with determining whether the applicant's conditions met the criteria for a war-caused disability pension under the Veterans' Entitlements Act 1986.

The court needed to ascertain whether Mr Rickaby's cervical and lumbar spondylosis were indeed war-caused, as required by the Act. Additionally, the court had to decide if the applicant qualified for a disability pension at either the special rate or the intermediate rate, based on the provisions of sections 24(1)(b) and 23(1)(b) of the Act. The applicant argued that his conditions were a direct result of his service, supported by medical evidence and his own testimony about the injuries he sustained during his service.

The court meticulously reviewed the evidence presented by Mr Rickaby, including his medical reports and personal statements. The Tribunal noted that while Mr Rickaby experienced neck pain during his service, there was no definitive medical evidence linking this pain directly to his current conditions of cervical and lumbar spondylosis. Furthermore, the Tribunal found that Mr Rickaby's neck pain, although significant, did not meet the threshold of being a war-caused disability as required by the Act. The court concluded that the applicant's conditions did not qualify for a special or intermediate rate pension, as neither section 24(1)(b) nor section 23(1)(b) of the Act was satisfied.

In light of these findings, the court affirmed the decision of the Repatriation Commission. The court found that Mr Rickaby's claims for a disability pension were not substantiated by sufficient evidence to meet the statutory criteria for war-caused disability or for the special and intermediate rates.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The Tribunal documents in Exhibit TD2 relate to Mr Rickaby's grant of an Invalidity Service Pension in 1999. There is nothing of direct relevance to the issues in the present application in Exhibit TD2.THE APPLICANT'S EVIDENCE The Applicant provided a written statement dated 10 August 1999 (Exhibit A3). In it he stated as follows: On 6 June 2000 the Applicant provided a second statement (Exhibit A11) in which he made the following new and relevant comments: The Applicant provided further details of his neck problems: The Applicant provided further details of his back problems: The Applicant provided further details of his stress problems: In oral evidence the following fresh information emerged. Following the training accident at Singleton X rays were taken. He had two days in Maitland Hospital where he had physiotherapy and was given pain killers. He had no cervical splint. The Applicant had severe pain in his neck from the first accident that he rated nine on a scale of ten. He found his neck hard to turn. He took panadol for some relief. This was the situation for two weeks. He was on light duties in camp after two days following the accident. He had to rest, lay down a lot of the time and walked around. He still took three or four panadol a day after he returned to duty. After two weeks he worked but in a way to protect his neck. It was still sore to touch. There were no physical signs of neck problems. He then discussed the football injuries in Vietnam. He took a couple of panadol tablets a day for a week or so after the first accident. Any movement of the head caused pain. After the second football game, the next week, there was agony in his neck but especially when he moved it. The pain the second time was "a touch worse" than in the first incident. He worked to protect his neck more and increased his intake of panadols. He began to use a feather pillow to relieve his symptoms. The Applicant was cared for through the RAP. He was returned to full duty after 14 days. He took no further panadols. He was moved from Vung Tau to Nui Dat. He still had pain in his neck. He did not know if he really felt ready to return to duty. He dealt with the pain by taking panadol as he felt necessary. The pain eased somewhat over time. In cross examination the following points emerged. The service documents in Exhibit R2 relate to the broken nose incident in Vietnam on 10 March 1968. They refer only to the fractured nose and mention no neck pain. Mr Rickaby responded that he had mentioned it. He noted it was not recorded. Ms Breuer, for the Respondent, called attention to page four of Dr Miller's report (Exhibit A7) in which it appears that the Applicant told Dr Miller that, "although aware that the neck was aching, he did not think to mention it to the doctor at the RAP and he was not asked about it because all the attention was being paid to his nasal fracture." The Applicant insisted to the Tribunal that he had mentioned his neck problems. Although the neck pain was worse than the nose pain he received attention for the nose fracture because it was more obvious. The hospital records from March 1968 (Exhibit R2) refer only to Mr Rickaby's nose. No mention is made of any complaints he made about his neck. Mr Rickaby could not recall hospitalisation at all but was certain he would have mentioned his neck pain if put into hospital.

Decision

Reasons for decision

The Tribunal has concluded that Mr Rickaby's conditions of cervical spondylosis and lumbar spondylosis are not war-caused as required by the Act. The Tribunal has also concluded that the Applicant does not qualify for payment of Disability Pension at the special rate or the intermediate rate because neither of s 24(1)(b) or s 23(1)(b) of the Act are satisfied.DECISION The Tribunal affirms the decision under review.I certify that the 135 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr P D Lynch, MemberSigned: ..................................................................................... AssociateDate of Hearing 7 June 2000 Date of Decision 28 November 2000Representative for the Applicant Ms J Buchanan Representative for the Respondent Ms S Breuer

Ratio Decidendi

Legal Principle Established

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